Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 116

P1440/15

OPINION OF LORD BURNS

In the Petition of

SUSAN DRYBURGH

 

Petitioner;

for Judicial Review of decisions NHS Fife

Petitioner:  McGuire; Digby Brown LLP

Respondents:  MacNeill QC;  Central Legal Office

Interested Party: Lindsay QC; Anderson Strathern LLP

2 August 2016

[1]        This is a petition for judicial review of a decision of NHS Fife (the respondents) to refuse to allow the petitioner to have legal representation at a disciplinary hearing and at a forthcoming appeal hearing.  The petitioner is a dental health nurse who has worked for NHS Fife at Victoria Hospital, Kirkcaldy and elsewhere for about 20 years.  She has a qualification in orthodontics.  In early June 2015 allegations were made against her that she had acted inappropriately involving activity with racist overtones. 

[2]        The allegation has been reported to Police Scotland but no criminal proceedings have been commenced.  An investigation was carried out by the respondents. After disciplinary proceedings were started, her solicitors sought confirmation that they would be entitled to represent her at the forthcoming hearing.  By letter 13 October 2015 the respondents intimated that they had decided to refuse to allow her to be legally represented since she was not contractually entitled to such representation. 

[3]        The disciplinary hearing took place on 19 October 2015.  The petitioner is said to have been unable to attend the hearing due to ill‑health and it took place in her absence.  The allegations made against her were found to have been established and she was summarily dismissed.  The decision was intimated to her by letter dated 30 October 2015.  She exercised her right to appeal against her dismissal and was subsequently informed by the respondents that she would not be permitted to have legal representation at the appeal which had been due to take place on 6 January 2016.  This petition was raised on 24 December 2015 and by interlocutor dated 30 December 2015 the court pronounced interdict ad interim preventing the appeal hearing taking place without legal representation. 

[4]        The respondents intimated the reasons for her dismissal to the General Dental Council (the GDC).  The GDC operates a registration scheme in the United Kingdom for dentists and for dental care professionals including the petitioner.  Registration is a prerequisite for working as a dental nurse within the United Kingdom.  The petitioner is so registered but, as a result of the allegations made, proceedings may be taken against her which could result in the withdrawal of her registration and, accordingly, the inability of the petitioner to work as a dental nurse in the United Kingdom.

[5]        By letter dated 11 December 2015 the GDC informed the petitioner that it had decided that the allegations made against her amounted to an allegation that “her fitness to practise as a dental nurse is impaired” and the matter had been referred to the investigating committee of the GDC.  The matter may be referred to the practice committee to consider whether or not the petitioner’s fitness to practise is impaired but the procedure has been put on hold until the outcome of this petition is known. 

[6]        A preliminary issue in relation to the competency of the petition is raised by the respondents in their second plea-in-law on the basis that the decisions which are challenged in this petition are not susceptible to judicial review.  The same point is taken by the GDC as an interested party in their first plea-in-law.

The submissions for the petitioner
[7]        Mr McGuire on behalf of the petitioner argued first that this matter was amenable to judicial review.  A tripartite relationship existed in this case which rendered the decision of the respondents amenable to the supervisory jurisdiction of the court.  The respondents are a statutory body exercising statutory powers which delegated responsibility for dealing with disciplinary matters concerning the petitioner to a specific committee within the organisation.  It had exercised a discretion whether or not to allow legal representation at the disciplinary hearing and at appeal.  That exercise was not concerned with or related to the contractual rights or obligations between the parties. 

[8]        The well-known principles set out in the case of West v Secretary of State for Scotland 1992 SC 385 at page 412 to 413 in relation to the necessary existence of the tripartite relationship should be applied in a flexible manner  (see Crocket v Tantallon Golf Club 2005 SLT 663 at 672H to 673B). 

[9]        He referred to Blair v Lochaber District Council 1995 SLT 407 which involved the judicial review of a decision to suspend the chief executive of a District Council pending certain investigations.  Lord Clyde in the Outer House held that the petitioner was seeking to enforce his right to work under his contract and the true nature of the dispute was contractual rather than administrative and dismissed the petition as incompetent.  Mr McGuire argued that judicial review was open in situations even in the absence of a tri-partite relationship where there had been an excess of power in the exercise of an administrative function by a public authority and this was recognised by Lord Clyde.

[10]      The case of Watt v Strathclyde Regional Council 1992 SLT 324, decided prior to West was also referred to by Mr McGuire.  That case involved the pay and conditions of teaching staff employed by education authorities in Scotland which required to be determined by a statutory body whereupon each local authority were required to give effect to them.  The statute expressly required the education authority to give effect to the settlement.  The respondents were unwilling to implement the settlement formulated by the statutory body.  The Inner House held that the decision not to give effect to the settlement was amenable to judicial review. 

[11]      Mr McGuire argued secondly that in the circumstances of this case article 6 was engaged upon the basis that the outcome of the petitioner’s disciplinary proceedings could, in practical terms, deprive her of the right to practise her profession as a dental nurse.  He referred to the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust & another 2010 ICR 101 CA.  There Lady Justice Smith, referring to the judgment of the European Court of Human Rights in Le Compte, Van Leuven and De Meyer v Belgium (1981) 4 EHRR 1, gave an obiter opinion to the effect that the European Court should be viewed as drawing a distinction on the one hand between cases where all that was at stake was the loss of a specific job, in which case article 6 would not be engaged.  On the other hand where the effect of the disciplinary proceedings could be far more serious and could, as in the case of Le Compte, deprive an employee of the right to practise his or her profession, article 6 would be engaged.  Mr McGuire submitted that that was the correct statement of the law and the effect of the disciplinary proceedings in the petitioner’s case could deprive her of the right to practise her profession.  Article 6 was therefore engaged and the decision to refuse her legal representation breached her article 6 rights. 

[12]      Mr McGuire argued thirdly that the findings of the respondents’ disciplinary panel would have such an influence upon the proceedings before the practice committee of the GDC that I should conclude that the petitioner’s article 6 rights are engaged by the respondents’ disciplinary proceedings.  The determination of the petitioner’s civil rights in respect of her ability to practise as a dental nurse would be determined by the findings of the respondents’ disciplinary panel because of the influence of those findings upon the result of the proceedings before the GDC.  Her article 6 rights were breached and I should strike down the decision to refuse her legal representation. 

[13]      For that proposition he referred me to R(G) v Governors of X School (Secretary of State for the Home Department and another intervening) (2012) 1 AC 167.  That case involved disciplinary proceedings against a teacher at a private school for sexual misconduct in which the claimant had been denied legal representation by the school governors at a hearing before a disciplinary committee consisting of three governors.  Instead he was granted representation by a colleague or Trade Union representative.  He was summarily dismissed and the matter was referred to the Independent Safeguarding Authority (ISA) under the Safeguarding Vulnerable Groups Act 2006 which was obliged to establish and maintain a “Children’s Barred List”.  The result of the claimant being placed on that list would mean that he was unable to teach. 

[14]      The Supreme Court, having examined the jurisprudence of the European Court of Human Rights, found that where an individual was subject to two sets of proceedings only the second of which would explicitly determine a civil right of an individual, the question of whether article 6(1) of the Convention was engaged in the initial proceedings was to be approached on a pragmatic, context sensitive basis and, if the initial proceedings would be truly dispositive of the civil right or would cause irreversible prejudice in the later proceedings, then article 6 would be engaged.  The majority found that test not to be met in the particular circumstances of the case standing the ability of the ISA to make its own findings in fact and bring its own independent judgment to bear as to the seriousness and significance of the allegation.  There was no reason to suppose that it would be profoundly influenced by the opinion of the school governors as to how primary facts should be viewed. 

[15]      Lord Kerr of Tonaghmore dissented from a majority in that respect and concluded that the ISA would be profoundly influenced by the findings of the school governors and that the test set out above had been met in the particular circumstances of the case.

[16]      Mr McGuire asked me to conclude that the disciplinary proceedings and any unsuccessful appeal hearing would have a substantial influence on the decision of the practice committee of the GDC.  It would take into account the findings of fact made by the respondents’ disciplinary proceedings and the outcome thereof.  It would have access to and rely upon documentary evidence prepared for those disciplinary proceedings.  Accordingly, the petitioner’s article 6 rights were engaged and the petitioner was entitled to legal representation at the disciplinary proceedings and failure to allow her such representation breached her article 6 rights.

The submissions for the respondents
[17]      Mr MacNeill argued first that judicial review in this case was incompetent.  This was a dispute about the party’s rights and obligations within a contract between an employer and an employee.  If article 6 was engaged a breach thereof would have a remedy against the respondents as a public authority under section 8 of the Human Rights Act.

[18]      He pointed out that the only relationship which exists between the parties is within the contract of employment.  He accepted that the contract had to be compliant with the Human Rights Act.  However, there was no tripartite relationship in this case pled by the petitioner.  This was a bilateral relationship and no question of delegation of the decision‑making process arose.  Reference was made to the NHS Fife Management of Employee Conduct Policy.  It was clear from paragraphs 7.2.5 and 7.2.6 of that document (6/10 of process) that the investigation and decision‑making process was an internal one with the disciplinary and appeal hearing panels comprised of employees of the respondents.

[19]      Mr MacNeill pointed out that the basis of a petition to the supervisory jurisdiction of this court is the existence of a tripartite relationship where, under statute or private contract, a decision making power or duty is delegated to a third-party whose manner of decision making may be controlled by the court (see West page 400).  It is the delegation to a decision-making body of a limited jurisdiction which constitutes the tripartite arrangement.  In the case of Tehrani v Argyll and Clyde Health Board 1989 SC 342, a committee of enquiry which examined the conduct of a consultant surgeon employed by the Health Board was set up to investigate and report to the Board.  It was the Board’s decision to dismiss the petitioner summarily and it was that decision which was challenged.   In explaining that case in West at pages 406-407, Lord President Hope said that while there was a tripartite relationship between an inferior tribunal, the appointing body and the petitioner, the Board itself was not in that position and as the petitioner’s employer owed him a duty to act fairly under their contract with him.  The performance of that duty was a matter to be regulated under the ordinary jurisdiction of the court according to the contract between employer and employee and was not amenable to judicial review.  Further into that paragraph the Lord President stated:

“The fact was however, that the board was not performing any function independent of their position as the employers of the respondent to whom they owed a duty to act fairly under their contract with him, and for that reason their duty to act fairly was not open to judicial review.”

 

The present case was similar.  The respondents here were not exercising any function independent of their position as employers.  The duty to act fairly was not open to judicial review. 

[20]      Mr MacNeill argued secondly that I should not follow Lady Justice Smith’s obiter comments in Kulkarni for the reasons given by Stanley Burnton and Elias LLJ in Mattu v University Hospitals of Coventry and Warwickshire NHS Trust 2013 ICR 270 at paragraphs 50 to 61, 105 and 108 to 111.  At paragraph 52 Stanley Burnton LJ emphasised that the court in Le Compte had referred to “the right to continue to exercise the medical profession” and that the decision of the Trust in the case of Mattu did not affect his right to practise his profession since he could lawfully do so in private practice or as an employee of another NHS Trust or private hospital.  Accordingly, his civil right to practise his profession was not engaged.  Furthermore, at paragraph 54, he considered that the question of the applicability of article 6 could not depend on whether or not a doctor or other professional could obtain work in his field as a result of dismissal by his employer.  The ability to do so may depend on a number of unpredictable factors.  At paragraph 61 he expressly stated that the obiter remarks in Kulkarni did not represent the law.  He held at paragraph 76 that Dr Mattu’s dismissal was the exercise of a contractual right and not the determination of a civil right within the meaning of article 6. 

[21]      Elias LJ agreed with the analysis of Stanley Burnton LJ and at paragraph 101 stated that in exercising a contractual right to dismiss pursuant to a disciplinary process an employer is protecting his own interests under contract and is asserting a right rather than determining it.  He too disapproved of the comments in Kulkarni (see paragraph 1110).  Mr MacNeill referred me to an affidavit of Sharon Hutcheon, the Deputy Director of Human Resources for Fife Health Board  one from Susan Coull, the Head of Human Resources for Grampian Health Board, which showed that a finding of inappropriate conduct would not necessarily mean that someone would never obtain employment with an NHS Trust.  In any event, he referred to evidence produced in the General Dental Council Registrant Report 31 October 2015 (7/2 of process) and the NHS Information Service Division NHS Scotland Workforce Statistics Medical and Dental Staff 31/12/2015 (7/3 of process) as showing that the majority of dental nurses working in the UK were not employed by NHS Trusts. 

[22]      For the GDC Mr Lindsay adopted the respondents’ submissions on the first and second issues and responded to Mr McGuire’s third submission.  He referred me to the statutory scheme under which the GDC operates its assessment of professional conduct and fitness to practise under the Dentists Act 1984 (the 1984 Act) sections 26(b) to 36(v).  At section 36(o) the investigation committee requires to investigate an allegation and determine whether it should be considered by the practicing committee.  If so, section 36(p) requires the practice committee to investigate the allegation and determine whether the person’s fitness to practise as a member of the profession is impaired.  The Practice Rules of 2008 issued in terms of the 1984 Act allow for legal representation of the person against whom the allegation is made and to hear evidence and for witnesses to be cross-examined (see paragraph 19).  Paragraph 20 allows the representative to answer submissions made by the presenter.  In terms of paragraph 21, on the conclusion of evidence and submissions the committee must determine whether or not the fitness to practise of the person concerned is impaired.  Reasons require to be given. 

[23]      Mr Lindsay submitted that these provisions ensured that the proceedings before the GDC were independent of those before the respondents and required them to make their own findings in fact and reach their own conclusions upon the evidence presented.  Primary legislation requires the practice committee to investigate allegations and make a determination.  That is backed up by the detail of the Practice Rules he referred to. 

[24]      He also referred me to Enemuwe v Nursing and Midwifery Council 2015 WL 4938278 a decision of the Administrative Court of the Queen’s Bench Division of 8 July 2015.  There Mr Justice Holman dealt with disciplinary proceedings against a midwife by the conduct and competence committee of the Nursing and Midwifery Council.  She had been the subject of disciplinary proceedings before the NHS Trust who had heard evidence and come to factual conclusions.  The investigating officer of the trust was proposed as a witness before the conduct and competence committee.  Her evidence was objected to and Mr Justice Holman agreed that, where there had been a prior investigation and prior findings by a local disciplinary body, those findings are not admissible in proceedings before the committee.  However, it was accepted that the committee did sometimes receive a redacted version of such a report or finding (see paragraph 38).  In the course of his opinion he referred to The Queen (on the Application of Squier) v The General Medical Council 2015 EWHC 299 (Admin). He concluded that a committee in the position of the conduct and competence committee would require to be informed of the fact of dismissal but knowledge thereof was very different from paying regard to the factual outcome of the previous investigation in reaching their own findings and conclusions on disputed issues of fact. 

[25]      Mr Lindsay contended that, while the practice committee may be informed of the general basis of the complaint made against the petitioner in this case and the decision of the respondents upon it, they require to make their own investigation and findings upon evidence led before it as tested, if appropriate, by cross-examination.

Discussion and Decision

[26]      I prefer the arguments of the respondents and the GDC in respect of all the issues advanced.

[27]      On the issue of whether the impugned decisions are amenable to judicial review, I conclude that they are not.  No tripartite relationship exists here.  The decisions were taken in the context of an employment dispute where the respondents delegated the inquiry as to alleged misconduct to an internal body in terms of the Management of Employee Conduct Policy (6/10 of process).  In Blair v Lochaber District Council Lord Clyde at page 408G-L discusses the meaning of the tripartite relationship set out in West at paragraph D on page 413.  At 409D he states:

“It is reasonable to conclude that the critical sentence is to be read in the context of contracts including contracts of employment.  There is no room for judicial review where there are contractual rights or obligations which can be enforced, at least as a matter of general principle.  The tripartite relationship explains the availability of judicial review to an employee in cases where the decision making body process has been entrusted to a body other than the employer.” 

 

At 409F his Lordship goes on:

“It might seem curious that a defective decision taken by a body to whom the employer has entrusted the matter might be open to judicial review when the same defective decision taken by the employer would not be.  The court in West explained that there is no illogicality once the necessity for the tripartite relationship is recognised.  It may be that a further reason could be that as between employer and employee there should be remedies available under the ordinary law but that in relation to the third body there may be no contractual basis for remedy, and the supervisory jurisdiction should normally only be involved in the absence of any other available remedies.”

 

[28]      This is not a case where the decision was “entrusted to a body other than the employer”.  The matter was dealt with internally.   While the decision not to allow the petitioner legal representation was an administrative one, the dispute between the parties is essentially a contractual one in which the petitioner is seeking to defend her right to work in the face of allegations of misconduct.   If there is unfairness in the manner in which the proceedings are conducted which can be said to breach her article 6 rights, the petitioner can advance a claim under what Lord Clyde called “the ordinary law” at page 409E of Blair.   I agree with the respondents that the decision to deny her legal representation may raise an issue of natural justice but that does not “elevate the contract into one within the domain of public administrative law” (Tehrani LJC Ross page 367 and West Lord President Hope at page 407).    

[29]      On the petitioner’s second ground, I respectfully agree with the analysis carried out by both Stanley Burnton LJ and Elias LJ in the case of Mattu.  The petitioner’s legal right to continue to exercise as a dental nurse has not been “determined” by the decision of the respondents to dismiss her. 

[30]      While it may be that it would be difficult for the petitioner to obtain employment with Fife Health Board, the affidavit of Sharon Hutcheon, the Deputy Director of Human Resources for Fife Health Board at paragraphs 27 and 28 does not entirely rule that out.  It is clear from the affidavit of Susan Coull, the Head of Human Resources for Grampian Health Board, that there are examples of employees having been dismissed for gross misconduct who have been successful in applying for a job with that health board.  In any event, the evidence produced in the General Dental Council Registrant Report 31 October 2015 (7/2 of process) and the NHS Information Service Division NHS Scotland Workforce Statistics Medical and Dental Staff 31/12/2015 (7/3 of process), to which I was referred by Mr MacNeill, demonstrates that of 5,796 dental nurses registered with the GDC in Scotland as at October 2015, there were only 1,475 employed in NHS Scotland as at 31 December 2015.  Accordingly the majority of dental nurses were not employed by NHS Trusts and would be employed by private organisations and NHS dental practices.  Mr McGuire was unable to contradict any of that information. 

[31]      Approaching the matter as the Court of Appeal did in Mattu, I am unable to conclude that the dismissal of the petitioner for gross misconduct, even if that is the decision of the appeal panel yet to sit on her case, would determine the right of the petitioner to continue to exercise her profession.  I agree that the European Court of Human Rights in Le Compte is properly understood to have laid down the principle that a decision resulting in a legal prohibition on the carrying on of a profession would engage article 6.  I do not consider that this is such a case.  For that reason I would refuse the petition.

[32]      Thirdly, and adopting the test in R(G) v Governors of X School, I am unable to conclude from the information advanced to me that the test set out there can be said to be met in the present case.  I do not consider, standing the statutory duties upon the practice committee of the GDC, that the findings of the respondents’ disciplinary panel would have a decisive influence on the decision-making process of the GDC. Nor can it be said that it would cause any irreversible prejudice in those proceedings.  I cannot assume that the GDC practice committee would ignore their statutory duties in the light of knowledge that the petitioner had been summarily dismissed for gross misconduct by the respondents.  I note that the letter from the respondents to the fitness to practise team of the GDC dated 10 August 2015 (6/5 of process) contains a synopsis of the complaint made against the petitioner.  I was not informed whether or not this letter would be placed before the practice committee itself but, even if it was, there is no reason to suppose that the committee would adopt it in the face of the evidence it hears, the cross‑examination of witnesses, including perhaps the evidence of the petitioner herself and the submissions it hears.  In R(G) the ISA did not operate a procedure for oral hearings with cross‑examination (see paragraph 70 of Lord Dyson’s opinion) and that as a consequence it would have had no opportunity to make any assessment of credibility (see paragraph 73).  That is not the case with the practice committee and I cannot assume that it would be prejudiced against the petitioner or be profoundly influenced by the information in the letter.

[33]      Accordingly, I do not consider that the petitioner has made out a case for judicial review of the decisions of the respondents to refuse to allow the petitioner to have legal representation at the disciplinary hearing or the appeal hearing.  I will therefore repel the pleas-in-law for the petitioner and sustain pleas-in-law numbers two, four, five, seven and eight for the respondents and one, two, three and four for the interested party.  I will refuse the prayer of a petition.  I will reserve meantime all questions of expenses.